Lord Chief Justice’s remarks on international child abduction

54.      The abduction of children from a loving parent is an offence of unspeakable cruelty to the loving parent and to the child or children, whatever they may later think of the parent from whom they have been estranged as a result of the abduction. It is a cruel offence even if the criminal responsible for it is the other parent. Any reference in mitigation to the right to family life, whether at common law, or in accordance with Article 8 of the Convention, is misconceived. In effect the submission involves praying in aid and seeking to rely on the very principle which the defendant has deliberately violated, depriving the other parent of the joy of his or her children and depriving the children from contact with a loving parent with whom they no longer wish to communicate. There is a distinct consideration to which full weight must be given. It has long been recognised that the plight of children, particularly very young children, and the impact on them if the person best able to care for them (and in particular if that person is the only person able to do so) is a major feature for consideration in any sentencing decision.

55.      These are offences of great seriousness, with the additional complexity arising just because the abducting parent is the person best able to provide the children with a home.

56.      Dealing with it generally, where the only person available to care for children commits serious offences, even allowing fully for the interests of the children, it does not follow that a custodial sentence, of appropriate length to reflect the culpability of the offender and the harm consequent on the offence, is inappropriate. On reflection, we can see no reason why the offence of child abduction should be placed in a special category of its own when the interests of the children of the criminal fall to be considered. Indeed in one sense, if the consequence is that the children wish to have nothing to do with the parent from whom they have been abducted, and have nowhere else to go, a further consequence of the abduction itself is the hardship then endured by the children.

57.      These offences wholly achieved their intended purpose. The mothers have suffered extreme emotional hardship, and although the children themselves are unaware of it, they have been deprived of one of the foundations for a fulfilling life. The periods of abduction were prolonged, many years in duration, and the relationship with the mothers was irremediably damaged. In the case of the mothers, the hardship will be life long. Given these stark facts, making every allowance for the impact on maturing teenage children of the imprisonment of their father in the light of their current living and educational arrangements, any damage to their welfare is a direct consequence of his actions. This does not justify a reduction in what would otherwise be entirely appropriate sentences.

Lord Judge, the (then) Lord Chief Justice of England and Wales, in The Crown v. Kayani and The Crown v. Solliman [2011] EWCA Crim 2871.

The above extract is taken from the judgment in two criminal child abduction cases that reached the Court of Appeal.  The cases involved fathers who had abducted children to Pakistan.  The appeals were concerned with appropriate sentencing in such cases and, in particular, whether the inevitably negative impact on the abducted children flowing from the imprisonment of the abducting parent/default child-carer was a relevant consideration in determining whether or not a custodial sentence should be imposed.  The Court decided that it was not, such was the gravity and nature of the offences, meaning that the wrongdoers could not benefit from their wrongdoing by securing a lighter sentence.

These appeals were argued on Thursday 24th November 2011, a mere 4 days after my son was abducted to Japan on Sunday 20th November 2011, itself 3 years ago to the day this day.

Further reading:

1.  Text of full judgment (UK Judiciary website – archive);

2.  Text of full judgment (Bailii website);

3.  Official case summary (UK Judiciary website – archive);

4.  Case comment on http://www.familylaw.co.uk  website.

Law Soc 1

The Law Society building, Chancery Lane, London, UK (photograph taken by author on Saturday 20 September 2014)

First child returned FROM Japan through Hague Convention

It has been reported today that a young boy, who shares my son’s age, has been returned from Japan to Germany.  The report about it in the Japan Times can be read here.

It is being heralded as the first return of an abducted child from Japan since the coming into force of the Hague Convention on 1 April this year.  To so say however is not quite right as the return came about, in the end, by agreement.  The abductor, a Japanese mother, when faced with Hague proceedings brought for the German father agreed that the child had to go back.  She caved in and took the boy back herself.  That, in itself, is perhaps unsurprising as the child’s country of habitual residence was clearly Germany.  What is surprising is how, given this, and given that the abduction was a post-Hague case, the mother thought that she could get away with it at all.  Perhaps she was counting on the father not doing anything about it or, if he did, the Japanese courts not doing anything about it.  In this case, the outcome was certainly one that the Hague Convention exists to deliver.  For the father and child involved, it is gratifying that the process appears to have been fairly swift as well.

That said, what is not known for sure is what the attitude of the Japanese courts, notoriously hostile to foreign spouses, would have been to this had these proceedings not settled and had a Japanese judge had to adjudicate on the dispute.  That will be the real test of the system and it remains to be seen whether Japan will properly discharge its international obligations when a contested case comes before the courts as it is bound to before long.

The boy was removed from Germany in June 2014 and returned there in mid-October:  news of these matters tends only to seep out some weeks later.  The requested return was made in August.  Apart from the Japan Times report referred to at the beginning, there are at the time of writing further reports, along similar lines, in the Mainichi Daily News (Japan), Z News (India), the Daily Times (Pakistan) and The Western Australian.

Armistice Day 2014

Today is Armistice Day.  It is especially significant in 2014 because, of course, the First World War commenced 100 years ago this year.  But for me, and despite the sacrifices made by so many people in that war and others, today’s date holds another significance.  My son was abducted to Japan in November 2011.  His exact age on the date of abduction was 1,087 days.  Today marks the passage of exactly 1,087 days since his abduction and therefore 1,087 days since I last saw my beloved son.  As of today Hugo has now spent exactly half of his life wholly separated from his father.

 

Tower of London poppies 2

Tower of London poppies 1

Above:  The display of ceramic poppies in the moat of the Tower of London (2014).  One poppy was laid for each of the 888,246 British servicemen who gave their lives in the First World War.  It is an awesome spectacle and a wonderful way to remember; see also this BBC News article about it and also this Daily Mail article, both dated 7 November 2014.  The BBC reported today that the final poppy was laid this morning.

Update (15 November 2014):  Hello Hugo, I spoke to your grandmother on the telephone earlier this evening and found out that she, unbeknown to me at the time, visited the poppy display at the Tower on Tuesday 11th November, Armistice Day itself and the date of my above post.  That’s all for now.

Happy Halloween Mr Abe

Prime Minister Shinzo Abe addressed the 2014 International Bar Conference in Tokyo on 19 October 2014. In doing so, he spoke of the Hague Convention; it would have been surprising had he not done so this year of all years.  In an otherwise brief but thoughtful speech, the first part of his remarks about the Convention are wholly out of sync with what the Convention is about; such was the dichotomy between what he was initially saying and what he was purportedly addressing, it was as if his subject was some other issue altogether.  What he said was this:

Furthermore, Japan in particular is participating actively in international efforts to aid women in their efforts to gain further skills and to protect and promote women’s rights. On April 1 this year, the Convention on the Civil Aspects of International Child Abduction (the Hague Convention) entered into force in Japan. Japan is actively involved in efforts to resolve issues of child removal, in accordance with international rules.

Manifestly, the Convention is not about ‘women’s rights’ any more than it is about ‘fathers’ rights’. The Convention is not framed as a rights-based instrument at all but as a mechanism to safeguard the best interests of children.  The only reference, in the Convention, to the concept of rights are the rights of ‘custody and access’, rights which,  it has to be said, are regarded as mutually inclusive by the Japanese courts (i.e. they are vested in one parent alone).  All of this goes to show how the Convention is misunderstood in Japan – and why Japan was so slow to sign it in the first place.  It is about protecting children.  It is an instrument designed to bring about the legitimate aim of quickly putting right the civil wrong of child abduction before lasting harm is done.

Mr Abe’s last sentence does, of course, more directly touch on that very issue but it belies the fact that it cannot sensibly be said that Japan is ‘actively involved’ in efforts to resolve issues of child removal. All the indications so far are that Japan is simply not doing so on any meaningful level; in over 6 months there have been no returns from Japan despite the prevalence of child abduction in that country.  There is nothing to indicate that anything is being done about those abducted children who are not covered by the protection of the Convention.  Mr Abe is far from alone in Japan as regarding the entering into force of the Hague Convention as having solved a deep-seated problem; it has not.